People v. D'Arbeau

Appeal by defendant from a judgment of the County Court, Westchester County, rendered December 27, 1973, convicting him of robbery in the first degree and grand larceny in the third degree, upon a jury verdict, and imposing sentence. The appeal also brings up for review (1) so much of an order of the same court, dated August 29, 1972, as denied that branch of defendant’s motion which sought to suppress certain identification testimony and (2) a further order of the same court, dated December 21, 1973, which denied defendant’s motion to set aside the verdict and for a new trial on the ground of newly discovered evidence. Order of August 29, 1972 reversed insofar as reviewed, on the law, and said branch of defendant’s motion is granted to the extent that a hearing is directed as to the propriety of the identification at issue. The case is remanded to the County Court for the holding of such a hearing, pursuant to CPL article 710. The appeal from the judgment will be held in abeyance in the interim. The trial court’s refusal to grant said branch of defendant’s motion to the extent of directing an identification hearing was error. Hopkins, Acting P. J., Latham, Brennan and Shapiro, JJ., concur.